ArtI.S10.C3.3.2 Historical Background of the Compact Clause

Article I, Section 10, Clause 3:

No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

The roots of the Compact Clause can be traced to interstate boundary disputes during the colonial period in American history.1 As population in North America expanded and moved westward, some colonies sought control over greater shares of territory.2 At the same time, land grants in the colonies’ royal charters were often vague and indefinite, which led to disagreements about colonial borders.3 The British legal system provided two methods for the colonies to resolve these disputes: a litigation-like process before the British Royal Commission or private negotiations between the colonies followed by settlements that were approved by the Crown.4 Both processes were precursors to provisions in the Constitution. The litigation-like process continued in Article III, Section 2, which gives the Supreme Court original jurisdiction over disputes between states.5 The private settlement process carried over into the Compact Clause.

In the period after the Revolutionary War but before the Constitution was adopted, the Articles of Confederation shifted the British system of compact-making slightly. The Articles of Confederation allowed the states to negotiate independently and form compacts, but they required approval from the newly created Congress rather than the Crown.6 Despite the requirement for congressional consent, several states entered into interstate compacts without seeking approval during the Articles of Confederation period.7

At the Constitutional Convention, James Madison cited states’ unapproved compacts as one reason to strengthen the national government’s general power over the states in a new system of government.8 Later in the convention, the Committee of Detail included what would become the Compact Clause in its drafts of the Constitution,9 and the Committee of Style revised the clause into its final form.10 Minor elements of the Compact Clause differ from the Articles of Confederation,11 but the clause retained its basic structure in which states can form agreements and compacts with one another and with foreign governments, provided Congress consents.12

Apart from Madison’s remark about unapproved compacts, the Framers said little about the Compact Clause during the Constitutional Convention and state ratification debates.13 In The Federalist No. 44, Madison wrote that the “particulars” of the Compact Clause “are either so obvious, or have been so fully developed, that they may be passed over without remark.” 14 Despite Madison’s confidence that the clause is self-explanatory, compact-making practice has evolved, and disagreements have required courts to interpret the Compact Clause’s scope and requirements.15

See Felix Frankfurter & James M. Landis, The Compact Clause of the Constitution—A Study in Interstate Adjustments, 34 Yale L. J. 685, 692 (1925). back
See id. back
See, e.g., Rhode Island v. Massachusetts, 37 U.S. 657, 724 (1838); Virginia v. Tennessee, 148 U.S. 503, 504–07 (1893). back
See Frankfurter & Landis, supra note 1, at 693–95. See also Rhode Island v. Massachusetts, 37 U.S. at 739–44 (discussing boundary settlement processes in Great Britain). back
See infra ArtIII.S2.C2.2 Supreme Court Original Jurisdiction. The Supreme Court regularly encourages states to resolve their disputes through compacts rather than litigation. See, e.g., Vermont v. New York, 417 U.S. 270, 277–78 (1974). back
Article VI of the Articles of Confederation states: “No State, without the Consent of the united States, in congress assembled, shall . . . enter into any confer[]ence, agreement, alliance, or treaty, with any King prince or state . . . . No two or more states shall enter into any treaty, confederation, or alliance whatever between them, without the consent of the united states, in congress assembled, specifying accurately the purposes for which the same is to be entered into, and how long it shall continue.” Articles of Confederation of 1781, art. VI, paras. 1, 3. back
See Frankfurter & Landis, supra note 1, at 732. back
See 1 The Records of the Federal Convention of 1787, at 316 (Max Farrand ed., 1911) [hereinafter Farrand’s Records] ( “[N]o two or more States can form among themselves any treaties . . . without the consent of Cong[ress] yet Virgi[ni]a & Mary[lan]d in one instance—Pen[nsylvania] & N[ew] Jersey in another, have entered into compacts, without previous application or subsequent apology.” ). back
The Committee of Detail’s first draft provided: “No State shall enter into any . . . Treaty, Alliance (or) Confederation (with any foreign Power nor with[out] Cons[ent] of U.S. into any agreem[ent] or compact w[ith] (any other) another State or Power . . . .” 2 Farrand’s Records, supra note 8, at 169. The Committee of Detail’s later draft, which was submitted to the Constitutional Convention, stated: “No State, without the consent of the Legislature of the United states, shall . . . enter into any agreement or compact with another State, or with any foreign power . . . .” 2 Farrand’s Records, supra note 8, at 187. Earlier in the Convention, Alexander Hamilton had proposed a draft constitution that included a similar clause. See 3 Farrand’s Records, supra note 8, at 630 ( “No State shall enter into a Treaty, alliance, or contract with another, or with a foreign power without the consent of the United States.” ). back
See 2 Farrand’s Records, supra note 8, at 597 (revisions by Committee of Style); See 2 Farrand’s Records, supra note 8, at 657 (final version of the Compact Clause in the Constitution). back
The Compact Clause conditionally allows “any Agreement or Compact” when Congress consents, but Clause 1 of Article I, Section 10 forbids the states from entering into three types of pacts—treaties, alliances, and confederations—even if Congress approves. See U.S. Const., art. I, § 10, cls. 1, 3. By contrast, the Articles of Confederation did not create a second category of pacts that were forbidden no matter if Congress consents. See Articles of Confederation of 1781, art. VI, paras. 1, 3. The Framers’ writings suggest each category of pact mentioned in these provisions had a distinct and commonly understood meaning when the Constitution was drafted. See U.S. Steel Corp. v. Multistate Tax Comm’n, 434 U.S. 452, 460–62 (1978). According to the Supreme Court, however, the meaning of these terms of art were lost within a generation, leaving later jurists and scholars to debate different theories of distinction. See U.S. Steel Corp., 434 U.S. at 463. back
Compare Articles of Confederation of 1781, art. VI, paras. 1, 3, with U.S. Const., art. I, § 10, cl. 3. back
See U.S. Steel Corp., 434 U.S. at 460–62 ( “The records of the Constitutional Convention . . . are barren of any clue as to the precise contours of the agreements and compacts governed by the Compact Clause. . . . The records of the state ratification conventions also shed no light.” ). back
The Federalist No. 44 (James Madison). back
See infra ArtI.S10.C3.3.3 Subject Matter of Compacts and infra ArtI.S10.C3.3.6 Legal Effect and Interpretation of Compacts. back